Allahabad High Court
Veerpal And Another vs State Of U.P. on 20 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1362, 2020 (1) ALJ 120
Author: Umesh Kumar
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 47 Reserved on 18.07.2019 Delivered on 20.08.2019 Case :- CRIMINAL APPEAL No. - 53 of 2013 Appellant :- Veerpal And Another Respondent :- State Of U.P. Counsel for Appellant :-Manvendra Nath Singh, Arvind Kumar Singh, Brijesh Sahai, Gopal Swaroop Chaturvedi, Kamal Krishna, Manish Tiwary, Sarvesh, V.C. Tiwari Counsel for Respondent :-Government Advocate, Dilip Kumar, Rajeev Gupta Connected with Case :- CRIMINAL APPEAL No. - 126 of 2013 Appellant :- Anuj Respondent :- State Of U.P. Counsel for Appellant :-Mohd. Afzal, Arvind Kumar Singh, Manish Tiwary, Vikash Chandra Tiwari Counsel for Respondent :-Government Advocate, Ajay Kumar Pandey, Satish Trivedi Connected with Case :- CRIMINAL APPEAL No. - 154 of 2013 Appellant :- Bijender Singh And Others Respondent :- State Of U.P. Counsel for Appellant :-Mohd. Afzal, Amit Mishra, Arvind Kumar Singh, Manish Tiwary, Vikash Chandra Tiwari Counsel for Respondent :-Government Advocate, Ajay Kumar Pandey, Satish Trivedi Hon'ble Ram Surat Ram (Maurya),J.
Hon'ble Umesh Kumar,J.
[Delivered by Ram Surat Ram (Maurya),J.]
1. Heard Sri Manish Tiwary, in Criminal Appeal No. 53 of 2013, Sri R.K. Singh, in Criminal Appeal No. 126 of 2013 and Sri Mohd. Afzal, in Criminal Appeal No. 154 of 2013, for the accused-appellants and Sri Dilip Kumar, Senior Advocate, assisted by Sri Muktesh Singh, for the informant and Sri Nafees Ahmad, A.G.A., for State of U.P.
2. Veerpal and Dharmveer have filed Criminal Appeal No. 53 of 2013, Anuj has filed Criminal Appeal No. 126 of 2013 and Bijender Singh, Tejpal and Neeraj have filed Criminal Appeal No. 154 of 2013, from their conviction and sentence passed by Additional Session's Judge, Court No. 10, Ghaziabad, dated 13.12.2012, in S.T. No. 361 of 2010, State of U.P. Vs. Bijendra Singh and others, [arising out of Case Crime No. 684 of 2009], under Section 147, 148, 452, 323/149, 307/149, 302/149, 506 of Indian Penal Code, 1860 (hereinafter referred to as the IPC) P.S. Modi Nagar, district Ghaziabad, convicting and sentencing them for six months rigorous imprisonment under Section 147 IPC, one year rigorous imprisonment under Section 148 IPC, three years rigorous imprisonment and fine of Rs. 1000/- each under Section 323/149 IPC, one year six months rigorous imprisonment under Section 506 IPC and rigorous imprisonment for life and fine of Rs. 3000/- each under Section 302/149 IPC, with default stipulation.
3. On the written complaint (Ex-Ka-1) of Vikal Singh (PW-1), FIR (Ex-Ka-4) of Case Crime No. 684 of 2009, under Section 147, 148, 149, 452, 323, 307, 506 IPC was registered on 21.09.2009 at 22:45 hours, at police station Modi Nagar, district Ghaziabad, by Constable Jagpal Giri (PW-2) against Bijender, Veerpal, Bhoopendra, Anuj, Tejpal, Dharmveer and Neeraj. It has been stated in the FIR that Harendra, the brother of the informant came to his house from Maha Maya Temple on 21.09.2009 at 9:00 PM. As soon as the brother of the informant entered inside his house, opening the door, then behind him, Bijender, Veerpal sons of Hariram, Bhoopendra, Anuj sons of Bijender, Tejpal son of Khajan, Dharmveer son of Khachedu Singh and Neeraj son of Satpal, armed with lathi-danda, hockey sticks and handle of hand pump, entered his house. With common intention to kill him, the accused began to assault his brother from their respective weapons, which caused grievous injuries on the head and body of his brother and lacerated wound was caused on the head. Wife of his brother intervened in the incident and shouted "bachao bachao". While intervening, wife of his brother also received invisible injuries. His brother had become unconscious on the spot. Hearing the shouts, the informant, his brother Manoj, Sanjay son of Shoraj, Devendra son of Teekam, Anil son of Rajendra and large number of peoples came on the spot, who had seen the incident. Looking to the large number of peoples, the accused ran away from the spot giving threats to kill. Due to election rivalry, the aforementioned accused have caused this incident. He took his brother to Jeevan Hospital, Modi Nagar, from where he was referred to higher center, looking to his critical condition. He sent his brother to Meerut along with other family members and himself came to lodge FIR. He lodged the FIR and prayed for taking legal action against the accused.
4. From Jeevan Hospital, Harendra was taken to Anand Hospital Meerut, where he was admitted on 21.09.2009 at 11:01 PM. Dr. Ajay Gupta (PW-7) examined him and prepared his Injury Report (Ex-Ka-13). During treatment Harendra died on 22.09.2009 at 4:40 AM. From the hospital, a memo was sent to the police station Medical College, Meerut, for conducting Inquest of the deceased on 22.09.2009 at 6:25 AM, on which, SI Aman Singh (PW-3) conducted Inquest (Ex-Ka-6) of the dead body of Harendra on 22.09.2009 between 11:15 AM to 12:40 PM. He prepared Police Form-13, photo lash, challan lash and letters to the authorities (Ex-Ka-7 to Ka-11) for conducting postmortem of the dead body and handed over the dead body to constable Sanjay Kumar, for taking it up to mortuary. Dr. R.V. Singhal (PW-6) conducted autopsy of dead body of Harendra on 22.09.2009 at 2:30 PM and prepared Postmortem Report (Ex-Ka-12) in which following ante-mortem injuries were noted:-
(i) 9cm long curved stapled wound, 1.5cm above left ear with 19 staples.
(ii) 5.5cm long stapled wound, 10 staples, 6cm above right ear.
(iii) Abraded contusion 6cm x 3cm on top of left shoulder.
(iv) Abraded contusion 12cm x 3cm on back of right side of right chest, below right scapula.
(v) Abraded contusion 17cm x 2cm on back, below left scapula.
In the internal examination, fracture of right parietal bone with haematoma was found. Membranes and brain were lacerated and blood clot was present. Ribs were pale. 6th and 7th rib were fractured. Right lung lacerated with and haematoma and bloody fluid 1 litre present. Left lung and Pericardium were pale. Both chambers of heart were empty. 100ml. semi digested food was present in the stomach. Bladder was empty. Gall bladder was pale and half full. Pancreas, spleen and kidneys were pale.
In the opinion of the Doctor, cause of death was shock, as a result of ante-mortem injuries."
5. Dr. K.C. Tiwari (PW-8) examined Smt. Sarita wife of Harendra on 24.09.2009 at 12:45 PM and prepared her Injury Report (Ex-Ka-15) in which following injuries were noted:-
(i) Contusion 1/2cm x 1/2cm on the right forearm, 7cm above the right wrist.
(ii) Contusion 6cm x 3cm at outer side of left arm, 4cm above left elbow.
(iii) Contusion 3cm x 4cm over left forearm, 6cm below elbow joint.
(iv) Complained of pain on left neck.
(v) Complained of pain on both buttocks.
Dr. K.C. Tiwari (PW-8) examined Smt. Sunita wife of Manoj on 24.09.2009 at 1:00 PM and prepared her Injury Report (Ex-Ka-14) in which following injuries were noted:-
(i) Contusion 1cm x 1cm at right ankle joint, colour black. Injury simple in nature, caused by hard blunt object, duration 2-4 days.
6. After registration of FIR, SI Om Kumar (PW-9), started investigation in the matter. He copied check FIR and G.D. entry in case diary and recorded statements of the informant Vikal Singh and Smt. Sarita on 21.09.2009. On 22.09.2009, he recorded statements of Smt. Sunita, Manoj, Sanjay, Devendra, Anil and Smt. Krishna and inspected the spot on the pointing out of the informant and prepared site-plan (Ex-Ka-16). He obtained plain earth and blood stained earth from the place of occurrence and prepared its recovery memo (Ex-Ka-2). On 22.09.2009, he received information regarding death of Harendra, then he converted the case under Section 302 IPC at 17:45 hours, vide G.D. No. 32. He recorded statements of Jagpal Singh.
7. From 23.09.2009, the investigation was undertaken by Inspector Rajesh Kumar Singh (PW-10). He sent the injured Smt. Sarita and Smt. Sunita for their medical examination, along with Home Guard Rampal on 24.09.2009. He arrested the accused Dharmveer on 26.09.2009. He arrested the accused Veerpal, Bhoopendra, Anuj and Neeraj on 30.09.2009. He arrested the accused Tejpal on 02.10.2009. He arrested the accused Bijendra on 03.10.2009 and recorded their statements. The accused confessed their guilt and became ready to recover the weapons. On the pointing, of Veerpal, one danda (Ex-Ka-17) was recovered on 30.09.2009 at 8:20 AM. On the pointing, of Bhoopendra, one handle of hand pump (Ex-Ka-18) was recovered on 30.09.2009 at 9:15 AM. On the pointing, of Neeraj, one hockey stick (Ex-Ka-19) was recovered on 30.09.2009 at 10:00 AM. On the pointing, of Tejpal, one danda (Ex-Ka-20) was recovered on 03.10.2009 at 7:40 AM. On the pointing, of Bijendra, one lathi (Ex-Ka-21) was recovered on 03.10.2009 at 8:30 AM. He copied the postmortem report in case diary, on 03.10.2009. He recorded statements of SI Matadeen, SI Om Kumar, constable Yogendra Singh, Gyanendra Singh, Shyam Kumar, Devesh, Omveer Singh and Omendra Kumar. He prepared site-plans (Ex-Ka-22 to Ka-26) of the places of recovery. On 19.10.2009, he recovered blood stained clothes of the deceased and prepared its recovery memo (Ex-Ka-3). He recorded statements of Sanjeev Kumar, Vikram Singh, Omveer Singh and Nitesh Kumar. He recorded statements of SI Aman Singh, constable Sanjay Kumar, Vinod Kumar, Himanshu Singh, Dev Singh, Babloo Bashisth and Neeraj Kumar. On 20.10.2009, he copied Injury Reports in case diary. On 07.11.2009, he sent the blood stained clothes and blood stained and plain earth for chemical examination through letter (Ex-Ka-27). On 19.10.2009, he submitted charge sheet (Ex-Ka-28) against the accused. He recorded statement of Dr. Ajay Gupta on 06.01.2010, after taking permission of the Magistrate and submitted it. The Magistrate, after taking cognizance, committed the cases to Session's Court.
8. On committal, the case was registered as S.T. No. 361 of 2010, State Vs. Bijendra Singh and others. Additional Session's Judge framed charges against the accused on 21.01.2011. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, apart from documentary evidence, the prosecution examined Vikal Singh (PW-1), the informant and brother of the deceased, constable Jagpal Giri (PW-2), to prove check FIR, SI Aman Singh (PW-3), to prove Inquest (Ex-Ka-6), Smt. Sarita (PW-4), an injured witness and wife of the deceased, Smt. Sunita (PW-5), an injured witness, Dr. R.V. Singhal (PW-6), to prove Postmortem Report (Ex-Ka-12), Dr. Ajay Gupta (PW-7) to prove Injury Report (Ex-Ka-13) of Harendra, Dr. K.C. Tiwari (PW-8), to prove Injury Reports (Ex-Ka-14 and Ka-15) of Smt. Sarita and Smt. Sunita, SI Om Kumar (PW-9) first Investigating Officer, Inspector R.K. Singh (PW-10), second Investigating Officer and Omveer Singh (PW-11), a witness of recovery memos. Manoj Kumar (CW-1) was elder brother of the deceased. It may be mentioned that Bhoopendra died during trial and trial was abated against him.
9. After completion of the evidence of the prosecution, all the incriminatory facts and materials were put to the accused under Section 313 CrPC. They denied the facts and materials and claimed for false implication. They stated that Harendra received fatal injuries in road accident and they were falsely implicated. Tejpal took plea that he was employed in BSNL and was living along with his family at Nand Nagli, Modi Nagar for last 20 years. He was not present in the village on the date of incident rather was on duty at Head Quarter of BSNL, Delhi. They examined S.P. Singh (DW-1), a Finger Print and Handwriting Expert, to prove signature and thumb impression of Manoj Kumar at the hospital papers, Munesh Pandit (DW-2), Manager of Anand Hospital to prove Bed Head Ticket of the deceased.
10. After hearing the parties, Additional Session's Judge, by impugned judgment held that from the allegations made in the FIR, site-plan as well as statements of the witnesses Vikal Singh, Smt. Sarita, Smt. Sunita and SI Om Kumar, it was proved that the place of occurrence was the house of the deceased. The occurrence was fully proved from the statement of Vikal Singh, Smt. Sarita, Smt. Sunita, who were eye witnesses of the incident. As the case was proved by the eye witnesses, as such the motive has no importance. In the hospital records and Injury Report (Ex-Ka-13), it was inadvertently written as "traffic accident", which could not create any doubt. Vikal Singh reached Anand Hospital on 22.09.2009 at 1:00 PM, then he had signed the various document. In the meantime, Harendra was admitted by his nephew Sanjay Singh, whose signature was obtained on paper No. 175-Kha/11. On these findings, he convicted the appellants and sentenced as mentioned above. Hence these appeals have been filed.
11. In order to prove the charges, the prosecution has examined three eye witnesses, namely Vikal Singh (PW-1), Smt. Sarita (PW-4) and Smt. Sunita (PW-5). Vikal Singh (PW-1) has stated that Harendra was his younger brother. On 21.09.2009 at about 9:00 PM, Harendra was coming to his house from Maha Maya Temple. As soon as, his brother entered inside his house, opening the door, then behind him, Bijender, Veerpal, Dharmveer, Tejpal, Anuj, Bhoopendra and Neeraj, who are residents of his village and to whom, he was knowing well, entered his house. Bhoopendra was armed with handle of hand pump, Neeraj was armed with hockey stick and remaining persons were armed with lathi-danda. The accused began to assault Harendra from their respective weapons. Smt. Sarita, wife of his brother and Smt. Sunita, wife of Manoj tried to intervene in the incident, in which they also received injuries. In this incident, his brother received grievous injuries and was drenched with blood. On their shouts, he, his brother Manoj, Devendra, Sanjay, Anil and large number of peoples came on the spot. He and other persons saw the incident. Looking to them, the accused ran away from the spot, giving threats to kill. His brother had become unconscious. They took him to Jeevan Hospital, Modi Nagar. The doctor present on duty came outside and went up to the vehicle, on which Harendra was brought and after examining him, he referred for Meerut, looking to his critical condition. His family members and relations proceeded to Meerut taking Harendra. He along with Babloo Bashistha went to lodge FIR at the police station Modi Nagar. He got scribed the written complaint through Babloo Bashistha and after being read over, signed and gave it to the police station, on which FIR was registered. All the accused were present in the Court. He had fully recognized the accused in the light of the generator. On his pointing out, Investigating Officer made spot inspection and prepared site plan on that day. He also collected blood stained and plain earth from the place of occurrence and prepared its recovery memo (Ex-Ka-2). Harendra died in the hospital on 22.09.2009 due to the injuries. He gave blood stained clothes of Harendra to Investigating Officer of which recovery memo (Ex-Ka-3) was prepared.
In cross-examination, he stated that his house is situated at a distance of about 100 paces from the house of Harendra in another lane. In between the two houses, about 8-10 houses are situated. House of Sanjay is situated in front of his house. It is incorrect to say that his house is situated at a distance of 2 furlong. Harendra alone had gone to Maha Maya Temple. At the time of incident, he was present in front of the house of Harveer. When he came on hearing the hue and cry, the accused were assaulting his brother. They assaulted him for about half minutes after his reaching there. When he took Harendra to the hospital, at that time Smt. Sarita and Smt. Sunita were not taken to the hospital for their treatment. Harendra was not provided any first aid at Jeewan Hospital. Harendra was taken to Meerut by Omveer and other relations, who got him admitted in the hospital and not by Manoj. After sending Harendra to Meerut, he went to the police station for lodging FIR. From the police station, he came to his house at about 11:30 PM. Thereafter, he went to Meerut and reached there at 1:00 AM. Investigating Officer recorded his statement at his house after some time, who had also made spot inspection in the night. He went for medical examination of Smt. Sarita and Smt. Sunita on the next day but the doctor was not present there. It is incorrect to say that he sold soil of his field, due to which his field has become four feet deep and the water was collected in his field for which he had quarrel with Bijendra. He did not know that any quarrel had taken place between his brothers Manoj and Raj Kumar and Bijendra and Bijendra had lodged any FIR of the incident. He got the complaint scribed in front of Railway station, which took about 15-20 minutes. Babloo Bashistha went with him to Meerut. From Meerut, he came to his house for giving information of the death of Harendra. After information, he again returned for Meerut at about 6:00 to 6:30 AM and remained there till the dead body was handed over to them after postmortem. He showed his ignorance about lodging of FIR of Case Crime No. 22 of 2003, under Section 25 Arms Act, Case Crime No. 313 of 1994, under Section 323, 504, 506 IPC, Case Crime No. 75 of 2000, under Section 352, 504, 506 IPC at police station Modi Nagar, against Harendra. He got scribed the names of the injured as Sarita and Sunita in the FIR. He had fully recognized the accused in the light of generator. At the time of incident, Kharak Singh was Pradhan of the village. They had supported him in the election. In last election, they had supported Bijendra, son of Jasdeo. Harendra was taken to hospital on Tata Sumo vehicle of Harendra. Omveer informed him that Harendra was admitted to Anand Hospital. He and Babloo Bashistha went to Meerut on his Maruti Zen. He denied that on 24.09.2009, they procured fake Injury Reports of Sarita and Sunita, although they did not receive any injury. He denied that Harendra received injuries in road accident at Meerut, due to which he died. He showed his ignorance that Tejpal was living at village Nand Nagari, at a distance of about 5 kilometer from his village. He stated that from his village 50-60 persons had gone to Meerut hospital and someone among them got Harendra admitted in the hospital. Sanjay Singh was son of Shyoraj Singh of his village. Paper No. 175-Kha/11 did not bear the signature of his brother Manoj but Paper No. 175-Kha/8 was signed by Manoj.
12. Smt. Sarita (PW-4) stated that incident took place on 21.09.2009 at about 9:00 PM. She was present at her house and was waiting for her husband Harendra, who had gone to Maha Maya Temple. Her jethani Sunita was also sitting with her. During that time, her husband came to the house from Maha Maya Temple. As soon as, he entered inside the house, opening the door, then behind him, Bijender, Veerpal, Bhoopendra, Neeraj, Tejpal, Anuj and Dharmveer also entered the house. Bhoopendra was armed with handle of hand pump, Neeraj was armed with hockey and remaining persons were armed with lathi-danda. She knew the accused since before the incident as they were her neighbourers. She saw and recognized the accused in the light of generator. Dharmveer challenged while shouting that today Harendra would not be spared, kill him. The accused with common intention assaulted her husband by their respective weapons. Her husband received grievous injuries and fell down on the spot, becoming unconscious. At the time of the incident, she and her jethani Smt. Sunita tried to save her husband and shouted "bachao bachao", then the accused assaulted them also. On their shouts, Manoj, Vikal, Devendra, Sanjay, Anil and large number of peoples came on the spot. If these persons would not have come, then, the accused might have kill them also. The accused run away from the spot, giving threats to kill. The accused assaulted her husband due to election rivalry. She knew all the accused. Today, Bijendra, Neeraj and Bhoopendra were not present in the Court and Anuj, Tejpal, Veerpal and Dharmveer were present. Her medical examination was held. Her statement was recorded by the police.
In cross-examination, she stated that during that period, her husband used to go to temple daily. When her husband went to the temple, her jethani Sunita was sitting at her house and talking with her. He returned to the house at about 9:00 PM. As soon as, he entered inside the house, the accused also entered the house and began to assault him. She had seen the injuries of her husband. She proceeded for three-four steps to save her husband, Bijendra and Veerpal assaulted her. Tejpal fell down her jethani Sunita and Veerpal told to hit in his head so that he could not survive. She had told Investigating Officer that Veerpal had told to hit in his head so that he could not survive and Tejpal had fallen down her jethani Sunita and Dharmveer assaulted her. If these were not recorded in her statement under Section 161 Cr.P.C. then she could not give any reason. She and Sunita received invisible injuries and blood was not oozing. As soon as the accused ran away, her jeth Vikal and other villagers namely Omveer, Sanjay and Devendra took her husband to the hospital in a vehicle. Manoj remained at the house for their safety. He brought a doctor to the house for providing medicines to them. The police came to her house after 2 to 2-1/2 hours of the incident and recorded her statement. On the next day again the police came to her house and recorded statements of her jethani. She did not know that who had gone to Meerut along with her husband nor she could tell that who had informed that her husband was taken to Meerut. About one year prior to the incident, election had taken place. Since then the accused used to keep enmity with her family. During the election or till the incident, no altercation or any quarrel had taken place between her husband and the accused. In the morning, her jeth Vikal came to the house and began to talk with her mother-in-law, then she began to weep. Vikal came back to the house at about 11:30 PM and thereafter he went and then came back after sunrise. She denied that her husband received injuries in road accident. Her father's village was Arauda, which is situated at Meerut to Mawana road at a distance of about half kilometer from Mawana and about 8-10 kilometer from Meerut. She denied that on 21.09.2009, there was barasi of her brother Sushil at village Arauda; and her husband Harendra and Manoj had gone to attend barasi of Sushil and while returning back, they met with an accident on road, in which her husband received injuries. The date of incident was third day of Navaratri. She and her husband were observing fast. She did not remember as to whether her husband had gone to temple from the house or from outside. In her family, election of Pradhan of the village was contested by Kharag Singh, who had won the election defeating Yogendra. She cannot state the names of other contestants. She denied that Harendra was having a shop of spare parts near Arya Samaj Temple, Modi Nagar and was living in a rented house there.
13. Smt. Sunita (PW-5) stated that Harendra was her devar. The incident took place on 21.09.2009 at about 9:00 PM. She was sitting at her verandah of her house and talking with her devrani Sarita. The bulb were lightening through generator. Her devrani was waiting for her devar Harendra, who had gone to Maha Maya Temple. At about 9:00 PM, as soon as her devar entered inside the house, opening the door, then Bijendra, Veerpal, Bhoopendra, Neeraj, Tejpal, Anuj and Dharmveer also came, behind him. She knew them since before the incident. Bhoopendra and Tejpal were not present in the Court on that day. The accused with common intention began to assault her devar mercilessly with their respective weapons. Bhoopendra was armed with handle of hand pump, Neeraj was armed with hockey stick and remaining persons were armed with lathi-danda. She and her devrani tried to save Harendra, but the accused did not allow them to go up to Harendra and assaulted them. Veerpal was exhorting to assault on the head of Harendra so that he could not be spared. Dharmveer commanded while shouting to kill Harendra. At the time of the incident, they shouted, then her husband Manoj, her jeth Vikal, Devendra, Sanjay, Anil and large number of peoples came on the spot. Harendra had become unconscious as large quantity of blood was oozing from his head. When her husband and other people reached there, then the accused ran away from the spot, giving threats to kill. The accused used to keep enmity with her devar due to election rivalry. For that reason, the accused killed Harendra. Harendra was taken to Jeevan Hospital, Modi Nagar in his Tata Sumo, which was driven by Omveer. Her jeth Vikal took another vehicle. She did not know as to apart from other persons, who went with them.
In cross-examination, she stated that she was sitting in the portion of her devrani, while talking with her. She and her devarani had one house but separate verandah. Her devar went at about 5:00 to 5:30 PM, from the house, telling to go to the temple. Since then she was sitting there. Harendra used to go to the temple in evening, his time was not fixed. During this period, her husband was not at the house and was at the gher, which situated at a distance of 100 meter from her house. All the accused were assaulting Harendra, for about 3 minutes. Tejpal got her fallen through lathi and Dharmveer assaulted her. Veerpal was repeatedly telling to assault Harendra in his head. Her husband and jeth came within one and half minute of their shouting. Sanjay, Devendra and Anil also came along with her husband. As soon as her husband and jeth came, they took Harendra in the vehicle. Her husband Manoj did not went to the hospital. Her jeth Vikal came back to the house at about 11:30 PM. Manoj brought doctor to the house for their treatment. Her brother Manoj was not at the place of incident at that time. He came later on and went to the house of Vikal for safety of his children. The police recorded her statements on 22.09.2009. She had informed about the injuries received by her. She denied that Harendra was having a shop of spare part at Arya Samaj Mandir, Modi Nagar and was living there. Her father's house was at village Panchali, which situated at Meerut-Baghpat road. Her husband did not go outside on 21.09.2009 as it was navaratri. She along with her husband went to the temple for worship at about 12:00 in noon, in her Sentro car. At about 4:30 PM, he went to gher. Harendra had Tata Sumo and Vikal had his separate car. He denied the suggestion that on 21.09.2009, Harendra and Monoj had gone to village Atauda to attend barasi of the brother of Sarita and while returning, they met in an accident, in which Harendra received injuries and he was admitted to Anand Hospital. She showed her ignorance that Tejpal was living at Nand Nagari colony.
14. We have considered the arguments of counsel for the parties and examined the record. On the basis of endorsement of "Alleged road traffic accident" mentioned in Progress Sheet (Paper No. 175-Kha/3) and Injury Report (Ex-Ka-13) of Harendra and thumb impression of Manoj Kumar on Paper No. 175-Kh/15, the appellants argued that the deceased Harendra and Manoj had gone to village Atauda to attend barasi of the brother of Smt. Sarita (wife of the deceased) and while returning, they met with a road accident, in which Harendra received injuries and they were falsely implicated.
S.P. Singh (DW-1) has stated that the alleged thumb impression of Manoj Kumar on Paper No. 175-Kh/15, could not be tallied with his specimen thumb impression. Thus, from the own evidence, this paper has been disproved. So far as endorsement of "Alleged road traffic accident" mentioned in Injury Report (Ex-Ka-13) and Progress Sheet, are concerned, Vikal Singh (PW-1) has stated that they had first taken, Harendra to Jeevan Hospital, Modi Nagar. The doctor present on duty came outside and upto the vehicle, on which Harendra was brought and after examining him, he referred him for Meerut, looking to his critical condition. His family members and relations proceeded to Meerut taking Harendra and they got him admitted in Anand Hospital, Meerut. He along with Babloo Bashistha went to lodge FIR at police station Modi Nagar. Thereafter, he went to his house, where SI Om Kumar (PW-9) recorded his statements and made spot inspection. Then he proceeded to Meerut and reached Anand Hospital at 1:00 AM, then he signed various papers in the hospital. From his statements, it was proved that in a critical condition, his family members and the villagers got Harendra admitted in Anand Hospital. If any wrong endorsement was made in Progress Sheet at that time, then the entire prosecution evidence is not liable to be disbelieved. Paper No. 175-Kha-10 was signed by Babloo Bashistha and Amit, Paper No. 175-Kha-11 was signed by Sanjay Singh, who were villagers. The fact that hospital papers were signed by various villagers, itself proves that statements of Vikal Singh (PW-1) is more reliable. In case, Harendra had received injuries in road accident, then presence of the villagers in Anand Hospital, which was at a distance of about 50 kilometers from his village, was not provable in the night. It case of contradiction between endorsement of the hospital and ocular testimonies, the eyewitnesses have to be given precedence. Dr. Ajay Gupta (PW-7) who has prepared Injury Report (Ex-Ka-13) of the deceased has stated that the injuries of Harendra might have come from blunt object.
15. The incident had taken place on 21.09.2009 at 9:00 PM and FIR has been lodged on 21.09.2009 at 22:45 hours by Vikal Singh. Constable Jagpal Giri (PW-2) stated that after lodging the FIR, he sent information to superior officer on R.T. Set on 21.09.2009 at 22:45 hours, immediately, which was endorsed in G.D. SI Om Kumar (PW-9) stated that after receiving copy of FIR and G.D. entry, he had reached the place of occurrence within 15-20 minutes. He recorded statements of the informant and made spot inspection in night, at 12:10 AM, in the light of generator. As such, it cannot be said that FIR was ante-timed. Vikal Singh (PW-1) remained on the spot at least up to 12:10 AM in night and thereafter he went to Meerut, by his Maruti Zen car.
16. Vikal Singh, Smt. Sarita and Smt. Sunita (PWs-1, 4 and 5) have stated that incident had occurred inside the campus of the house of Harendra. In the site-plan (Ex-Ka-16), the place of occurrence was shown inside the campus of Harendra. SI Om Kumar (PW-9) collected blood stained flour and plain flour from the house of Harendra, where he was assaulted by the accused and prepared its recovery memo (Ex-Ka-2). In chemical examination report dated 14.10.2009, the blood was found in Ex-Ka-2 but its origin could not be determined as the blood had become disintegrated. If Harendra had received injury in road accident, then his vehicle Tata Sumo might have been also damaged. But there is nothing to show that vehicle of Harendra or his brother Manoj was damaged in the alleged road accident. From the aforesaid evidence, it is proved that the place of occurrence was inside the campus of Harendra.
17. On the basis of the facts that the name of Smt. Sunita was not mentioned as an injured in FIR and the injuries of Smt. Sarita and Smt. Sunita were examined on 24.09.2009, the appellants argued that these were fabricated injury reports. So far as non-mentioning the name of Smt. Sunita as an injured in the FIR is concerned, FIR was hurriedly scribed and if something has been omitted in it then on its basis no suspicion can be raised as it has now been well settled that FIR was not an encyclopedia. Injury Report (Ex-Ka-15) of Smt. Sarita shows that she received two contusions of simple nature in her hands and complained of pain at three places. Injury Report (Ex-Ka-14) of Smt. Sunita shows that she received one contusion in her hand of simple nature. Husband of Smt. Sarita had died in this incident. In the circumstances, if they did not care for their medical examination, for two days, then nothing was unusual. Injury Reports (Ex-Ka-14 and Ka-15) were proved by Dr. K.C. Tiwari (PW-8). Nothing has come in his cross-examination to show that these injury reports were fake.
18. So far as the arguments that disclosure statement was not separately recorded and signed by the accused as such recoveries of the weapons on the alleged pointing out of the accused (except Anuj, from whom, nothing was recovered) were illegal. They relied upon the judgment of Supreme Court in Jaskaran Singh v. State of Punjab, AIR 1995 SC 2345.
This case came into consideration before Supreme Court in State of Rajasthan v. Teja Ram, (1999) 3 SCC 507, in which Supreme Court examined the said issue at length and considered the provisions of Section 162(1) CrPC. Section 162(1) reads, no statement made by any person to a police officer in the course of an investigation done, if reduced to writing, be not signed by the person making it. Supreme Court held that it was evident from the aforesaid provision, that there is a prohibition in peremptory terms and law requires that a statement made before the investigating officer should not be signed by the witness. The same was found to be necessary for the reason that, a witness will then be free to testify in court, unhampered by anything which the police may claim to have elicited from him. In the event that, a police officer, ignorant of the statutory requirement asks a witness to sign his statement, the same would not stand vitiated. At the most, the court will inform the witness, that he is not bound by the statement made before the police. However, the prohibition contained in Section 162(1) CrPC is not applicable to any statements made under Section 27 of the Evidence Act, 1872 (hereinafter called "the Evidence Act"), as explained by the provision under Section 162(2) CrPC. The Court concluded that the resultant position is that the investigating officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it." Supreme Court again in Golakonda Venkateswara Rao v. State of A.P., (2003) 9 SCC 277, reconsidered the entire issue, and held that merely because the recovery memo was not signed by the accused, will not vitiate the recovery itself, as every case has to be decided on its own facts. In the event that the recoveries are made pursuant to the disclosure statement of the accused, then, despite the fact that the statement has not been signed by him, there is certainly some truth in what he said, for the reason that, the recovery of the material objects was made on the basis of his statement. This judgment has been followed in Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205, and approved by a three Judges Bench in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
19. The charges against the appellants have been proved by the ocular testimonies of Vikal Singh (PW-1), Smt. Sarita (PW-4) and Smt. Sunita (PW-5), which were fully corroborated with medical papers and the police papers. Smt. Sarita and Smt. Sunita (PWs-4 and 5) are ladies, their presence at the house at 9:00 PM cannot be doubted as Smt. Sarita and Smt. Sunita (PWs-4 and 5) were residing in the same house, having separate verandah. They have stated that they were talking between them at the verandah of Smt. Sarita at the time of incident. At the time of incident, the bulbs were lightening from the generator. The accused were neighbourers and were fully known to them. Vikal Singh (PW-1) stated that at the time of incident, he was in front of the house of Harveer and after listening hue and cry, he came on the spot and had seen the incident. Smt. Sarita and Smt. Sunita (PWs-4 and 5) intervened in the dispute and they also received injuries. These witnesses have fully proved the charges. Except minor contradictions, their testimonies were consistence on main incident and manner of assault. There is nothing in their statements to raise any doubt in respect of their presence. So far as the alleged improvements are concerned, the police interrogated them in respect of the incident, which was replied by them. In statements in Court, something more were asked from the witnesses then it were also replied by them.
20. Although there were seven accused but on the body of the deceased five injuries were found in Postmortem Report (Ex-Ka-12). According to the prosecution, they formed unlawful assembly and with common object to kill Harendra, all the accused entered his house and participated in the quarrel. The appellants were members of unlawful assembly, which has been proved from the ocular testimony of the witnesses. They were convicted with the help of Sections 147, 148, 452, 323/149, 307/149, 302/149, 506 of Indian Penal Code, 1860.
21. In view of aforesaid discussions, the aforementioned appeals have no merit and are dismissed.
22. Office is directed to remit the original record to the court below and send a copy of the judgment for its compliance.
Order date: 20.8.2019 Jaideep/-
[Umesh Kumar,J.] [ Ram Surat Ram (Maurya),J.]